Real Estate & Property Law

Final Brief In Maui Councilmember Residency Appeal: What Is "Immediate Forfeiture And Vacancy?"

By Robert Thomas (inversecondemnation.com)

Today, we filed the Reply Brief in DeJetley v. Kahoohalahala, No. 29929, the appeal now pending in the Hawaii Supreme Court regarding the Lanai member of the Maui Council who is alleged to not be a resident of Lanai as required by the county charter.

Section 3-3 of the Charter provides that "If a council member ... ceases to be a resident of the council member?s residency area during the council member?s term of office, or if a council member is adjudicated guilty of a felony, the council member shall immediately forfeit office and the seat shall thereupon become vacant."

Several Lanai residents sought a declaratory judgment in circuit court that the council member had forfeited office, and that the seat was vacant because he is not a Lanai resident. The Circuit Court dismissed the complaint, holding that declaratory relief was not available, and the remedy was impeachment or recall. The Lanai voters appealed, and the case was transferred from the Intermediate Court of Appeals to the Supreme Court.

Here are all the briefs in the case:

• Opening Brief

• Answering Brief

• Reply Brief

This case is related to Dupree v. Hiraga, No. 29646 (Oct. 20, 2009), in which the Hawaii Supreme Court held that in order to register to vote as a resident of a district, a person must have a fixed habitation in the district in which he is attempting to register, as well as a "physical presence" there. In that case -- the councilmember's appeal from a determination by the State Board of Registration that he is a Lahaina resident and his attempt to register to vote as a Lanai resident was invalid -- the court held "there was nothing in the record to establish that Kahoohalahala actually lived [at his brother?s home] or anywhere else on Lanai in any commonly-understood meaning of the term." Dupree, slip op. at 53.

Oral arguments have not yet been scheduled.

Full post as published by inversecondemnation on November 16, 2009 (boomark / email).